71st OREGON LEGISLATIVE ASSEMBLY--2002 Special Session
Enrolled
House Bill 4010
Sponsored by HOUSE SPECIAL SESSION COMMITTEE ON ECONOMIC STIMULUS
AND PUBLIC POLICY
CHAPTER ................
AN ACT
Relating to transportation; creating new provisions; amending ORS
279.015, 279.019, 279.103, 366.543 and 367.620; and declaring
an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 367.620 is amended to read:
367.620. (1) Except as provided in subsection (2) of this
section, the principal amount of Highway User Tax Bonds issued
under ORS 367.615 shall be subject to the provisions of ORS
286.505 to 286.545.
(2) Highway User Tax Bonds may be issued under ORS 367.615 for
the purposes described in ORS 367.622 in an aggregate principal
amount sufficient to produce net proceeds of not more than
{ - $400 - } { + $500 + } million. The provisions of ORS
286.505 to 286.545 do not apply to bonds described in this
subsection.
SECTION 2. { + The Department of Transportation may not issue
bonds under the authority granted by ORS 367.620 (2) in an
aggregate principal amount that exceeds an amount the department
reasonably believes can be paid with $71.2 million in biennial
debt service. + }
SECTION 3. { + Notwithstanding section 4, chapter 669, Oregon
Laws 2001, if Highway User Tax Bonds described under ORS 367.620
(2) are issued in an amount sufficient to produce net proceeds
that exceed $400 million, the Oregon Transportation Commission
shall select projects to be funded from the net proceeds that
exceed $400 million from among the projects that were considered
by the commission under ORS 367.622 but were not chosen for
funding. Projects to be funded under this section may be selected
at any time prior to issuance of the bonds, the net proceeds of
which would bring the total net bond proceeds under ORS 367.620
(2) to more than $400 million. + }
SECTION 4. ORS 366.543 is amended to read:
366.543. Each biennium, { + any portion of the + } $71.2
million { - of moneys available to the Department of
Transportation shall be used to pay any principal and interest
due on bonds described in ORS 367.620 (2). However, any portion
of the $71.2 million that is not needed for payment of principal
and interest on the bonds - } { + referred to in ORS 366.524
that remains after deducting an amount equal to total debt
service payments payable on outstanding Highway User Tax Bonds
described in ORS 367.620 (2) + }shall be allocated 50 percent to
Enrolled House Bill 4010 (HB 4010-A) Page 1
the Department of Transportation, 30 percent to counties and 20
percent to cities. Moneys allocated to counties and cities under
this section shall be distributed in the same manner as moneys
allocated under ORS 366.524 are distributed.
SECTION 5. ORS 279.015 is amended to read:
279.015. (1) Subject to the policies and provisions of ORS
279.005 and 279.007, all public contracts shall be based upon
competitive bids or proposals except:
(a) Contracts made with other public agencies or the federal
government.
(b) Contracts made with qualified nonprofit agencies providing
employment opportunities for disabled individuals.
(c) A public contract exempt under subsection (2) of this
section.
(d) A contract for products, services or supplies if the value
of the contract is less than $5,000.
(e) Insurance and service contracts as provided for under ORS
414.115, 414.125, 414.135 and 414.145.
(f) Contracts for repair, maintenance, improvement or
protection of property obtained by the Director of Veterans'
Affairs under ORS 407.135 and 407.145 (1).
(g) Contracts between public agencies utilizing an existing
solicitation or current requirement contract of one of the public
agencies that is party to the contract for which:
(A) The original contract met the requirements of this chapter;
(B) The contract allows other public agency usage of the
contract; and
(C) The original contracting public agency concurs.
(h) If a project is competitively bid and all responsive bids
from responsible bidders exceed the public agency's cost
estimate, the public agency, in accordance with rules adopted by
the public agency, may negotiate with the lowest responsive,
responsible bidder, prior to awarding the contract, in order to
solicit value engineering and other options to attempt to bring
the project within the agency's cost estimate. A negotiation with
the lowest responsive, responsible bidder pursuant to this
paragraph shall not result in the award of the contract to that
bidder if the scope of the project is significantly changed from
the original bid proposal. Notwithstanding any other provision of
law, the records of a bidder used in contract negotiation
pursuant to this paragraph are not subject to public inspection
until after the negotiated contract has been awarded or the
negotiation process has been terminated.
(2) Subject to subsection (6)(b) of this section, the Director
of the Oregon Department of Administrative Services { + , + }
{ - or - } a local contract review board { + or, for contracts
described in ORS 279.712 (2)(c), the Director of
Transportation + } may exempt certain public contracts or classes
of public contracts from the competitive bidding requirements of
subsection (1) of this section upon approval of the following
findings submitted by the public contracting agency seeking the
exemption:
(a) It is unlikely that such exemption will encourage
favoritism in the awarding of public contracts or substantially
diminish competition for public contracts; and
(b) The awarding of public contracts pursuant to the exemption
will result in substantial cost savings to the public contracting
agency { + or, if the contracts are for public improvements
described in ORS 279.712 (2)(c), to the agency or the public + }.
In making such finding, the { - director - } { + Director of
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the Oregon Department of Administrative Services, the Director of
Transportation + } or { + the local contract review + } board
may consider the type, cost, amount of the contract, number of
persons available to bid and such other factors as may be deemed
appropriate.
(3)(a) Before final adoption of the findings required by
subsection (2) of this section exempting a contract for a public
improvement { + , or a class of contracts for public improvements
described in ORS 279.712 (2)(c), + } from the requirement of
competitive bidding, a public agency shall hold a public hearing.
(b) Notification of the public hearing shall be published in at
least one trade newspaper of general statewide circulation a
minimum of 14 days prior to the hearing.
(c) The notice shall state that the public hearing is for the
purpose of taking comments on the agency's draft findings for an
exemption from the competitive bidding requirement. At the time
of the notice, copies of the draft findings shall be made
available to the public. At the option of the public agency, the
notice may describe the process by which the findings are finally
adopted and may indicate the opportunity for any further public
comment.
(d) At the public hearing, the public agency shall offer an
opportunity for any interested party to appear and present
comment.
(e) If a public agency is required to act promptly due to
circumstances beyond its control that do not constitute an
emergency, notification of the public hearing can be published
simultaneously with the agency's solicitation of contractors for
the alternative public contracting method, as long as responses
to the solicitation are due at least five days after the meeting
and approval of the findings.
(4) A public contract also may be exempted from the
requirements of subsection (1) of this section if:
(a) Emergency conditions require prompt execution of the
contract;
(b) In case of sale of surplus property by a public agency, the
number, value and nature of the items to be sold make it probable
that the cost of conducting a sale by competitive bidding will be
such that a liquidation sale will result in substantially greater
net revenue to the public agency; or
(c)(A) The public contract is made between regularly organized
fire departments, as defined in ORS 652.050, for fire protection
equipment, as defined in ORS 476.005, and:
(i) The recipient regularly organized fire department makes a
written request for the fire protection equipment to the
transferor regularly organized fire department;
(ii) The fire protection equipment is surplus to or unusable by
the transferor;
(iii) The total fair market value of fire protection equipment
received by the recipient does not exceed $50,000 per calendar
year; and
(iv) The transferor holds a public hearing, with notice given
as outlined in subsection (3)(b) of this section, and finds that
the public contract is in the public's interest.
(B) As used in subparagraph (A) of this paragraph, 'public
contract' includes a sale at no cost.
(5) The Director { + of the Oregon Department of
Administrative Services + } or { + the local contract review + }
board shall adopt rules allowing the governing body of a public
agency and the officer of a public agency for contracts under
Enrolled House Bill 4010 (HB 4010-A) Page 3
$50,000 to declare that an emergency exists and establishing
procedures for determining when the conditions in subsection
(4)(a) of this section are present. The rules shall prescribe
that if an emergency is declared, any contract awarded under this
subsection and subsection (4)(a) of this section must be awarded
within 60 days following declaration of the emergency, unless the
director or board grants an extension.
(6) In granting exemptions pursuant to subsection (2)(a) and
(b) of this section, the Director { + of the Oregon Department
of Administrative Services, the Director of Transportation + } or
{ + the local contract review + } board shall:
(a) Where appropriate, direct the use of alternate contracting
and purchasing practices that take account of market realities
and modern or innovative contracting and purchasing methods,
which are also consistent with the public policy of encouraging
competition.
(b) Require and approve or disapprove written findings by the
public contracting agency that support the awarding of a
particular public contract or a class of public contracts,
without the competitive requirements of subsection (1) of this
section. The findings must show that the exemption of a contract
or class of contracts complies with the requirements of
subsection (2)(a) and (b) of this section.
(7) A written agreement under ORS chapter 190 is not necessary
under subsection (1)(g) of this section if the arrangement is
between or among units of local government.
SECTION 6. ORS 279.019 is amended to read:
279.019. (1) Exemptions granted by the Director of the Oregon
Department of Administrative Services pursuant to ORS 279.015 (2)
or 279.017 (2) constitute rulemaking and not contested cases
under ORS 183.310 to 183.550. However, an exemption granted with
regard to a specific contract { + by the Director of the Oregon
Department of Administrative Services, or an exemption granted by
the Director of Transportation with regard to a specific contract
or class of contracts for public improvements described in ORS
279.712 (2)(c), + } shall be granted by order { + , + } { - of
the director, - } which order shall set forth findings
supporting the decision { - of the director - } to grant or
deny the request for exemption. Such order shall be reviewable
pursuant to ORS 183.484 and shall not constitute a contested case
order. Jurisdiction for review of the order shall be with the
Circuit Court of Marion County. The court may award costs and
attorney fees to the prevailing party.
(2) Any person except the public contracting agency or anyone
representing it may bring a petition for a declaratory judgment
to test the validity of any rule adopted by the Director { + of
the Oregon Department of Administrative Services + } under ORS
279.015 and 279.017 in the manner provided in ORS 183.400.
(3) Any person except the public contracting agency or anyone
representing it may bring an action for writ of review pursuant
to ORS chapter 34 to test the validity of any exemption granted
pursuant to ORS 279.015, 279.017 and 279.055 by a board.
SECTION 7. ORS 279.103 is amended to read:
279.103. (1) Upon completion of and final payment for any
public improvement contract { + , or class of contracts for
public improvements described in ORS 279.712 (2)(c), + } in
excess of $100,000 for which the public agency did not use the
competitive bidding process, the public agency shall prepare and
deliver to the Director of the Oregon Department of
Administrative Services { + , + }
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{ - or - } the local contract review board { + or, for a
class of contracts for public improvements described in ORS
279.712 (2)(c), the Director of Transportation + } an evaluation
of the public improvement project { + or the class of
contracts + }.
(2) The evaluation shall include but not be limited to the
following matters:
(a) The actual project cost as compared with original project
estimates.
(b) The amount of any guaranteed maximum price.
(c) The number of project change orders issued by the public
agency.
(d) A narrative description of successes and failures during
the design, engineering and construction of the project.
(e) An objective assessment of the use of the alternative
contracting process as compared to the findings required by ORS
279.015.
(3) Evaluations required by this section shall be made
available for public inspection.
(4) The evaluations required by this section must be completed
within 30 days of the date that the public agency accepts { + :
(a) + } The public improvement project { + ; or
(b) The last public improvement project if the project falls
within a class of contracts for public improvements described in
ORS 279.712 (2)(c) + }.
SECTION 8. { + This 2002 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2002 Act takes effect on its
passage. + }
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Enrolled House Bill 4010 (HB 4010-A) Page 5
Passed by House February 10, 2002
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Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate February 10, 2002
...........................................................
President of Senate
Enrolled House Bill 4010 (HB 4010-A) Page 6
Received by Governor:
......M.,............., 2002
Approved:
......M.,............., 2002
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Governor
Filed in Office of Secretary of State:
......M.,............., 2002
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Secretary of State
Enrolled House Bill 4010 (HB 4010-A) Page 7